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Wednesday, September 2, 2009

WCB--Insult to Injury

A Special post..A report to the federation of labour

Insult to Injury

November,2008

report done by Stan Guenther

Janet Patterson

Sarah O`Leary

The changes that are the subject of this paper followed amendments to the Workers` Compensation Act {the "act"} in 2002-Bills 49 and 63,the Workers` Compensation Amendment Act (no1 and no.2). The purpose of this report is to assess and report on the impact of these changes on injured workers and on the Workers` Compensation board of B.C. ("WCB")

Since the changes have been extremely negative,we have often been asked whether it is time for labour to depart from the "historical compromise" underlying the compensation system.Our view is that the compensation system is an important benefit for injured workers-Financial,vocational and medical. It is also an important part of the regulation of safety in the workplace. As such,it is worth understanding and defending.

Nevertheless, there is no doubt that in B.C. the compensation system has been seriously undermined by the changes since 2002.In this report,we try to identify these key changes and the nature of their impact on injured workers. However,we also attempt to restate the fundamental principles and provide key recommendations for restoring a balanced and socially valuable system. Also,while we state that the WCB`s decision-making has become anti-worker, we do not suggest that this view describes all WCB officers. We do not understand that at the highest levels, the goal of cost reduction has resulted in legislation and WCB policy that has been used to confine or eliminate the discretion of individual WCB decision-makers. To the extent that adjudicative choice still exists,we believe that the cost-cutting message consistently communicated by the government and WCB administrations since 2002 has actively encouraged officers to deny or limit worker claims,effectively creating a "culture of denial" We appreciate that even in this punitive atmosphere,some officers are still trying to adjudicate fairly and humanely.

We dedicate this report to the injured workers who have stepped forward to provide their stories, the union that have supported these difficult claims and to the workers` compensation advocates who deal with the daily frustrations of working in a system that has become more inaccessible,ineffective and unfair: An insult to injured workers.

{Executive Summary}

Since 2002,substantial changes have been made to the laws and policies that govern the workers` compensation system in B.C. Those changes were driven by an employer lobby advancing the view that the system had become economically unsustainable. While the premise amounted to myth,the changes were real and profound and based upon no discernable principle other that that of reducing employers` costs. In that regard,they were very successful,but at a significant cost to workers` benefits and treatment under that system.

The authors endorse a set of principles upon which a modern workers` compensation system should operate,as a context in which to access these developments,their effects on injured workers,and to consider corrective actions, These principles are set out in our recommendations.

reduction of benefits rates from 75% of gross income to 90% of net income,resulting in a net reduction of benefits by 13%:

reduction of consumer price index("CPI")indexing of pensions to the rate of CPI increases less 1% and to a cap of 4% in any year,and calculated only once per year rather than twice:

restrictions on the manner of determining a worker`s wage rate,primarily to earnings in 12 months prior to injury instead of a flexible or discretionary method,with special prejudice to new,casual and seasonal workers:

wage rates determinations early in a claim,leaving errors uncorrectable when applied later to pensions:

restrictions on compensation for psychological injuries (no coverage for gradual onset conditions,requirement of "unexpected" cause,exclusion of conditions from actions from employers):

restrictions on compensation for permanent chronic pain and similar conditions(to 2.5% for functional pensions,non-acceptance as barrier to employment):

virtual elimination of pensions based on actual long-term losses of earnings as a result of various policy and procedural barriers to having the worker`s loss of earnings accessed:

delegation of power to board of directors to enact binding policy,resulting in removal of direction in decision-making processes(decisions determined by policy rules,rather than on the "Merits and justice" of the case) and concentration of power in board of directors:

unfriendly and inaccessible appeal processes that have become technical,complicated and difficult to understand,with limited jurisdiction,and

A worsening "culture of denial" throughout the adjudicative and appellate processes.

The Authors identify the shift of focus from the circumstances of workers to cost reduction for employers,and the removal of discretionary decision-making through the delegation of binding policy powers as fundamental to these changes,and identify the most extreme consequences as the effective elimination of loss of earnings pensions and the virtual elimination of vocational rehabilitation services. The authors further endorse recommendations designed to return to a principled and effective compensation system responsive to the needs of injured workers.

Summary of recommendations

1. Amend the workers` compensation act to entrench the following principles:

Entitlement to compensation for workplace injuries should be regardless of fault:

There should be security and speed of payment of compensation benefits without need for court process:

The adjudication and administration of a compensation system should be independent:

All costs of a compensation system should be borne by industry:

Compensation and rehabilitation of injured workers,along with the prevention of workplace injury,are the foundations of a modern workers` compensation system:

Injured workers and their dependents should be entitled to full compensation for loss of earnings and earning capacity caused or significantly contributed by any work-caused injury,condition or disease:

Entitlement to and determination of benefits should be with full and fair assessment based on the worker`s circumstances,consistent with the principles of the charter and human rights legislation:

A worker should be entitled to benefits where that worker`s compensable disability has diminshed his or hers earnings or earning capacity,taking into account all of the consequences of those injuries and all of the worker`s own circumstances,The worker`s own evidence of those consequences and circumstances must be given due weight:and

Injured workers are entitled to be treated with dignity and respect throughout their dealing with the adjudicative and appellate processes of the compensation system,and such processes should be readily accessible and easily understood by workers,Adjudicative and appellate processes should focus on evidence decision making and the appeal process should provide ready and comprehensive correction of errors:

Amend the Workers` compensation Act to base all benefits on 100% of a worker`s net earnings.

Amend the Workers` compensation Act to adjust benefits according to consumer price index every 6 months.

Amend the Act to provide that PFI pensions are for life of the worker.

Key Statistics: WCB economics after 2002

Re Virtual elimination of loss of earnings pensions

The following statistics show the dramatic change in the number of loss of earnings pensions awarded.

Prior to 2002,the WCB awarded an average of 970 loss of earnings(LOE) pensions per year between 2000-2003. As the new ACT and policy took effect,the WCB considered a similar number of permanently injured workers(about 1,500 per year) and awarded the following loss of earnings pensions:

2006- 39 LOE pensions

2007 -60 LOE pensions

Under the former ACT,the usual ratio was one loss of earnings pension for every 4.2 functional awards(2000-2007). Under the new ACT/policy the ratio is one loss of earnings pension for every 122 functional awards.

The effect of the new ACT and policy was to reduce loss of earnings pensions by well over 90%

RE Virtual elimination of real vocational rehabilitation

Between 2002 and 2005,the board`s expenditures for vocational rehabilitation (VR) benefits went from 130,490,000 to 1,550,000.

The 2005 VR expenditure is 1.2% of the 2002 expenditures,a staggering reduction of 98.8%

In 2006, VR expenditures increased to 3,627,000 but that still represents only 2.8% of the 2002 expenditures.

Re Surplus for the Workers` compensation board

Now despite declining employer assessments,the WCB has a growing surplus.In 2005,the board had a surplus of 474$ million.The surplus grew to 987$ million in 2006.

WCB Surplus

2001-------424 million

2002 -------146 million

2003-------7.8 million

2004-------347 million

2005------474 million

2006------987 million

Just incredible drop offs in rehabilitation expenditures and the same thing with permanent injury pensions......Something is wrong at worksafe bc......

These stats represent 1000s of workers,

First hand story---WCB,bonuses and job security,the new priority,the injured be damned!

The story of Grant G....The carpenter...

April 14th/2002---While working about 18feet up on an extension ladder inside a large wharehouse,polished concrete,labourer John left the ladder while Grant was working overhead,the concrete being polished was very slippery,John should never of left the ladder,next thing you know a 220lb Grant comes crashing to the ground only to meet the concrete with his left leg,the ankle literally bent over backwards and shattered,.......

Well,now what,911,great paramedics and go racing off to Surrey memorial,after being ex-rayed,medicated,a fine looking doctor,an orthopedic specialist Dr. Malloon told Grant that his ankle is shattered in pieces,and the likelyhood of a normal recovery is bleak,well,Grant G being the way he is told Dr. Malloon,"Hey,it`s not your fault,do what you can"

Anyways,4 days later surgery began,his original surgical plan he aborted halfway through because,well his plan wouldn`t work,he went plan B.......He knitted the bones together,6 screws,and attatched an external extruding bar which he screwed into the shin then attached the external bar to 6 pins in the ankle......Lovely job,felt a little like Steve Austin.....

Well,back at home recovering,pain like you wouldn`t believe,bring on the meds,well after suffering for weeks the leg started to hurt less,then like a light switch it really starting hurting,well,back to Surrey memorial to check on things,after some tests and ultra-sounds they told Grant G that he had bloodclots in the lower left leg,sheesh,now what,well,apparently these clots can be fatal,so now I get these stomach shots of tinzaparin everyday to thin my blood,then a 6 month regimin of warfarin blood thinners......

So now wheel chair bound for 6 months,a metal leg attatchment right-out of the Transformer movie,blood thinners and one gimpy looking leg,let the games begin with WCB.....

My first Voc-re-hab worker ruled out a return to construction and reccommended computer training,What the hell is a computer? Anyways she got promptly fired and gave me a new voc-re-hab worker,my new worker suggested a return to construction on light duty and to get a first-aid ticket......

Well I argued,I stated there is no such thing as light duty in construction and my leg is hooped....WCB insisted I get the first-aid course or be cut-off.....Well,lets take first-aid then.......

I showed up at St.Johns first aid course,I was told have a seat and fill out forms,one form being a medical release.....I had to get my doctor to sign a release stating I can carry a man on a stretcher out of an excavation or up stairs,I explained to the first aid course people what was going on and left,my doctor wouldn`t sign because I couldn`t do it,not to mention endangering injured workers by falsifying a medical release.....

Well I was immediately cut-off of benefits,I appealed and WCB backed off on the last day of the appeal,the months I have been spied on,followed every where I go.....Meanwhile knowing my leg is screwed I asked for training at BCIT,several 2 year courses were denied,another employment assessment and my brand-new voc-re-hab said you got 2 choices,dump truck driver or excavator operator.......

I went to the union in Burnaby and wrote a pre-liminary exacavator exam on paper then met with representatives of the industry,they explained to me that my age was a factor,the leg was definately a factor against being an operator,but they said the fact that I was blind in my right eye there was no way they would train me,I would be a danger other workers.......So game over.....or was it

I informed WCB of the results of the meeting and was told by my worker that it doesn`t matter,they enrolled me in a private cash school for ecavator training

Well,I argued that neither was suitable,my leg can`t clutch and peddle,well,it was take it or leave it and be cut off again......Well,lets be a excavator operator......A 10 week course,first week my leg got worse,second week even more so, third week I found leg all swollen up and all of a sudden I couldn`t breathe......I limped out of excavator school and went to the hospital,I could hardly breathe and was hacking up blood.....

Well,after ultra sounds,cat scan,they discovered my left shattered leg had reclotted with blood clots only this time the blood clots got out and in my lungs(pulmonary Embolism) 40% death rate with those.......Well, I managed to call my voc-re-hab worker and informed her that I had a pulmonary embolisim and wouldn`t be returning to school......

Well after almost dying three times in the hospital,I got a little better,my lungs ached,permanately scarred from the embolism,back on warfarin,only now on warfarin for life......

I get home a week later,barely kicking,only to discover that WCB had cut me off of all benefits the day I entered the hospital,a letter followed from WCB saying that the blood clots and pulmonary embolism had nothing to do with with my leg injury,in other words,GET LOST

I appealed and won,or did I.......My leg is a permanent injury,my lungs are permanately injured,I have to take warfarin for life,my restrictions are no prolonged walking,standing,not to stress the leg,and new restrictions because of the left leg,no prolonged sitting,no more than 2 hours at a time,elevate the leg many times a a day.......

So after another WCB employment assessment and a brand-new voc-re-hab worker they come at me again....No excavator,no first aid,no construction,they class me with disabilities at 25%.......Yet the employment assessment states that Grant G,with a little training,a mobile head set,a special chair,an adjustable table and a employer who will grant 6 to 8 breaks a day to elevate your leg ,you can be a dispatcher with no loss of earnings...............

So there`s the story, a ticketed journeyman carpenter with damaged lungs,chronic pain,blind in one eye,lifetime warfarin....life tossed upside down....and here is 2 weeks training no go be a dispatcher,no top ups,no guarantees nothing........

The government of Canada after an oral hearing with three doctors ruled Grant G disabled retro=active to the date of injury and WCB won`t recognize Canada disability,Taxi-dispatch was paying 8.00$ per hour,alarm dispatchers paid 10.00$ per hour,911/police/ambulance,trucking,any quality dispatch job required post secondary education that was denied.......

20 years of working with no claims,one good injury and WCB screws you,for all the life altering injuries they pay Grant G 400.00$ per month........He`s on appeal number 14, a room full of letters from WCB re-habs,case mangers,a dozen medical opinion`s from WCB doctors who have never seen me once.........hundreds of WCB staff were let go in 2002,the survivors were told tow the line or be gone,my story and hundreds of other happen everyday......

Stub your toe,break a finger,need a stitch,you get paid,get mangled for life lose your career,ruin your leg,your lungs,take rat poison everyday,elevate your leg,give up your sports,your future,only to be treated like dirt by WCB,bankrupted,followed,demeaned,there is a tragic story unfolding at Worksafe BC..........

Yet the media is afraid to tackle the issue,WCB breaks laws,endangers workers,flaunts rules and regulations,their goal is to pay nothing,that`s the story,there have been many suicides,family break-ups,people turning to the streets,like everything Gordon Campbell has put his hands on leaves a wake of victims........

Grant G will battle on,like the Iraqi reporter who threw his shoe at George Bush,I would like to throw my dead foot at Gordon Campbell,toe jam and all!

My heart goes out to you grant, my partner and I have battled them since '93, exactly the same response. It's inhumane, demeaning, and cruel to lead workers to believe they are insured until something horrible happens.

Grant my heart goes out you.I have had my time with these guys.If your story and WCB were cartoon characters this would be a scit right out of Saturday Nite Live.BUT IT IS TRAGGIC how this system urinates on the weak and sick.Keep up the fight I will be beside you in the spirit.Jim